The Sword and the Robe

This ideal of neutrality is particularly hard to maintain in times such as these, when our society faces major unsolved problems. Indeed, we judges are frequently criticized these days for our neutrality.

For example, it is argued by some members of our society that the judiciary has not taken an active enough role in combating crime. It is urged that we as judges, should take sides; that we should stand shoulder to shoulder with the police and prosecutors. Convictions should be easier, appellate review more rapid and resort to habeas corpus — what the founders of this republic called the Great Writ —drastically curtailed.

All of this frightens me, because when I was in law school, I was taught not that judges were there to see the defendant convicted and punished in every case, but that they were there to see justice done in every case.

Of course the state had to carry a heavy burden to obtain a conviction. Of course appellate judges would weigh each case carefully. Of course an individual, once convicted, could attack his sentence later. This, so I was taught, was not to coddle the guilty but to protect the innocent. I was raised in the days when the prevailing maxim was: “It is better that a thousand guilty people go free than that one innocent person suffer unjustly.”The suggestion that we as judges take sides frightens me for another, more fundamental reason as well. The Constitution established a legislative branch to make the laws and an executive branch to enforce them.

Both branches are elected and are designed to respond to ever-changing public concern and problems. Indeed, as we were reminded just last November, the failure of either branch to respond to the will of the majority can quickly be remedied at the polls.

But the framers of the Constitution recognized that responsiveness to the will of the majority may, if unchecked, become a tyranny of the majority. They therefore created a third branch — the judiciary — to check the actions of the legislature and the executive. In order to fulfill this function, the judiciary was intentionally isolated from the political process and purposely spared the task of dealing with changing public concerns and problems.

Finally, the constitutional task we are assigned as judges is a very narrow one. We cannot make the laws and it is not our duty to see that they are enforced. We merely interpret them through the painstaking process of adjudicating actual “cases or controversies” that come before us.

Our central function is to act as neutral arbiters of disputes that arise under the law. To this end, we bind ourselves through our own code of ethics to avoid even the appearance of impropriety or partiality. We must handle the cases that come before us without regard for what result might meet with public approval.

We must decide each case in accordance with the law. We must not reach for a result that we, in our arrogance, believe will further some goal not related to the concrete case before us. And we must treat the litigants in every case in an evenhanded manner. It would be as wrong to favor the prosecution in every criminal case as it would be to favor the plaintiff in every tort suit. We must never forget that the only real source of power that we as judges can tap is the respect of the people. We will command that respect only as long as we strive for neutrality.

If we are perceived as campaigning for particular policies, as joining with other branches of government in resolving questions not committed to us by the Constitution, we may gain some public acclaim in the short run. In the long run, however, we will cease to be perceived as neutral arbiters, and we will lose that public respect so vital to our function.

But when we accepted the judicial mantle, we yielded our right to advocate publicly our favored solutions for society’s problems. The tools for solving these problems are in the hands of the other branches of government because that is where the Constitution has placed them. That is also where we should leave them. I therefore urge that you politely disregard any suggestion that you give up the robe for the sword.

The above is an edited excerpt of U.S. Supreme Court Justice Thurgood Marshall’s May 8, 1981, speech before the Second Judicial Conference, in which Marshall took aim at Chief Justice Warren Burger’s attack against the judicial system for what he perceived as protecting those accused of a crime while failing to protect “decent, Iaw-abiding citizens.”